November 12, 2009 Dear Mock Trial Students, Teacher-coaches and Attorney-advisors

103 Pages·2010·2.51 MB·English

by  Stacey Whiteley

FINAL VERSION 1/20/10
November 12, 2009

Dear Mock Trial Students, Teacher-coaches and Attorney-advisors:

Thank you for participating in the 2010 New York State High School Mock Trial Tournament.
This program, now in its 27th year, is sponsored by the New York State Bar Association’s
Committee on Law, Youth and Citizenship and The New York Bar Foundation. Many thanks to
the numerous local bar associations across the state that sponsor mock trial tournaments in their
counties and to the County Coordinators who spend many hours managing the local tournaments.
Thanks also go to the teacher-coaches and attorney-advisors who dedicate countless hours to
students across the state. Most importantly, special thank you to all the students who devote
their time and energy to preparing for the tournament. Their incredible performances, year after
year, never cease to amaze us. Congratulations to Tottenville High School, the winner of the
2009 Mock Trial Tournament.

Please review carefully all of the enclosed mock trial tournament information, paying special
attention to the rules of the competition and the simplified rules of evidence with which you must
become familiar. The case this year, People v. Shawn Miller, is a criminal case involving two
life long friends and now business associates accused of securities fraud.

The mock trial program is a competition that has two purposes. The first is to teach high school
students basic trial practice skills. Students learn how to conduct direct and cross examinations,
how to present opening and closing statements, how to think on their feet and learn the dynamics
of a courtroom. Students will also learn how to analyze legal issues and apply the law to the
facts of the case. The level of skill shown by New York State students is extraordinary, and it is
due to the dedication and hard work of both the students and their teacher-coaches and attorney-
advisors.

The second and most important purpose of this competition is to teach professionalism. Students
learn ethics, civility and how to be zealous but courteous advocates for their clients. Good
sportsmanship and respect for all participants are central to this competition. We thank all of our
coaches, advisors and judges not only for the skills that they teach, but for the professional
example that they set throughout this tournament.

For 2010, there is a new rule under the Objections section regarding speculation. Rule 313
states: Questions that ask a witness to speculate about matters not within his personal knowledge
are not permitted, and are subject to an objection by opposing counsel. Please review this new
rule carefully with your team; it can be found on page 24. As a reminder, Rules 701 and 702 are
fictitious rules of evidence that do not exist in the actual rules of evidence. They were devised to
facilitate a mock trial and without these rules, the participants would have no boundaries in the
examination of witnesses. We would like to caution teams against inventing facts and over-
using objections based on invention of facts. These types of objections are disruptive to the trial
and should be used sparingly in only the most egregious situations. You should remember than
an objection based on Rule 701 and 702 is not a substantive application of the law or the rules of
evidence and will not likely help your overall presentation.

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The tournament finals will be held in Albany on May 23 through 25, 2010. The team that is successful
in achieving the regional championship in each of the six mock trial regions will be invited to
participate in the finals. The New York Bar Foundation will provide the necessary funds for each
team’s room and board for the two days that the team participates in the tournament finals in Albany.
Regional teams consist of the nine students, teacher coach, and attorney advisor whose expenses will
be paid by the New York Bar Foundation. If a school can cover the additional room and board costs,
the entire team is invited to attend as well.

This year’s Mock Trial Tournament materials will be posted on the Law, Youth and Citizenship
website, www.lycny.org. There will also be updates posted on the Mock Trial blog,
www.nysbar.com/blogs/mocktrial. There is also a link to the blog on the lycny page. Throughout the
competition, you should check the website and the blog for important announcements about the
competition.

We hope you enjoy working on this year’s case. Best wishes to all of you for a successful and
challenging mock trial tournament.

Sincerely,

James Hanlon, Esq., Akron
Chair, Committee on Law, Youth and Citizenship

Oliver C. Young, Esq., Buffalo
Chair, Mock Trial Subcommittee

Subcommittee Members:
Craig R. Bucki, Esq., Buffalo
Karen Callahan, Esq. New York City
Melissa Ryan Clark, Esq., New York City
Linda J. Cohen, Esq., Albany
John Cronan, Esq., New York City
Janet Phillips Kornfeld, Esq., New York City
Michael A. Yood, Esq., Buffalo

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STANDARDS OF CIVILITY
“. . . [O]urs is an honorable profession, in which courtesy and civility should be observed as a matter
of course.”
Hon. Judith S. Kaye, Chief Judge of the State of New York
The following standards apply to all participants in the Mock Trial Tournament, including students, teachers,
and attorneys:
1. Lawyers should be courteous and civil in all professional dealings with other persons.
2. Lawyers should act in a civil manner regardless of the ill feelings that their clients may have toward
others.
3. Lawyers can disagree without being disagreeable. Effective representation does not require
antagonistic or acrimonious behavior. Whether orally or in writing, lawyers should avoid vulgar
language, disparaging personal remarks or acrimony toward other counsel, parties or witnesses.
4. Lawyers should require that persons under their supervision conduct themselves with courtesy and
civility.
5. A lawyer should adhere to all expressed promises and agreements with other counsel, whether oral or in
writing, and to agreements implied by the circumstances or by local customs.
6. A lawyer is both an officer of the court and an advocate. As such, the lawyer should always strive to
uphold the honor and dignity of the profession, avoid disorder and disruption in the courtroom, and
maintain a respectful attitude toward the court.
7. Lawyers should speak and write civilly and respectfully in all communications with the court and court
personnel.
8. Lawyers should use their best efforts to dissuade clients and witnesses from causing disorder or
disruption in the courtroom.
9. Lawyers should not engage in conduct intended primarily to harass or humiliate witnesses.
10. Lawyers should be punctual and prepared for all court appearances; if delayed, the lawyer should notify
the court and counsel whenever possible.
11. Court personnel are an integral part of the justice system and should be treated with courtesy and
respect at all times.
The foregoing Standards of Civility are based upon the Standards of Civility for the New York State
Unified Court System.

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2009-2010 Mock Trial Case Materials

Table of Contents

Part I: Tournament Rules………………………………………………..7

Part II: Tournament Policies and Procedures…………………………..11

Part III: Simplified Rules of Evidence and Procedure…………………...17

Part IV: Trial Script………………………………………………………..35

Part V: Mock Trial Case Official Exhibits……………………………….69

Part VI: Related Law……………………………………………………….89

APPENDICES:
A. Statewide Mock Trial Regions (Map)
B. Mock Trial Tournament Performance Rating Guidelines
C. Mock Trial Tournament Performance Rating Sheet
D. Mock Trial Summer Institute Interest Form

© Copyright 2009 New York State Bar Association

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PREPARING FOR THE MOCK TRIAL TOURNAMENT
Learning the Basics
Teachers and attorneys should instruct students in trial practice skills and courtroom decorum. You may
use books, videos and other materials in addition to the tournament materials that have been provided to
you to familiarize yourself with trial practice. However, during the competition, you may cite only the
materials and cases provided in the Mock Trial Tournament materials contained in this booklet. You may
find the following books and materials helpful:
Mauet, Thomas A., Trial Techniques (6th ed.), Aspen Law and Business
Murray, Peter, Basic Trial Advocacy, Little, Brown and Company
Lubet, Steven, Modern Trial Advocacy, National Institute for Trial Advocacy
Vile, John R., Pleasing the Court: A Mock Trial Handbook (3rd ed.), Houghton Mifflin Company
Preparation
1. Teachers and attorneys should teach the students what a trial is, basic terminology (e.g., plaintiff,
prosecutor, defendant), where people sit in the courtroom, the mechanics of a trial (e.g., everyone rises
when the judge enters and leaves the courtroom; the student-attorney rises when making objections,
etc.), and the importance of ethics and civility in trial practice.
2. Teachers and attorneys should discuss with their students the elements of the charge or cause of action,
defenses, and the theme of their case. We encourage you to help the students, but not to do it for them.
3. Teachers should assign students their respective roles (witness or attorney).
4. Teams must prepare both sides of the case.
5. Student-witnesses cannot refer to notes so they should become very familiar with their affidavits and
know all the facts of their roles. Witnesses should “get into” their roles. Witnesses should practice
their roles, with repeated direct and cross examinations, and anticipate questions that may be asked by
the other side. The goal is to be a credible, highly prepared witness who cannot be stumped or shaken.
6. Student-attorneys should be equally familiar with their roles (direct examination, cross examination,
opening and closing statements). Student attorneys should practice direct and cross examinations with
their witnesses, as well as practice opening and closing arguments. Closings should consist of a
flexible outline. This will allow the attorney to adjust the presentation to match the facts and events of
the trial itself, which will vary somewhat with each trial. Practices may include a judge who will
interrupt the attorneys and witnesses occasionally. During the earlier practices, students may fall “out
of role”;however, we suggest that as your practices continue, this be done less and that you critique
presentations at the end. Each student should strive for a presentation that is as professional and
realistic as possible.
7. Each team should conduct a dress rehearsal before the first round of the competition. We encourage
you to invite other teachers, friends and family to your dress rehearsal.

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PART I

NEW YORK STATE HIGH SCHOOL
MOCK TRIAL TOURNAMENT RULES
General Information
1. TEAM COMPOSITION:
a. The Mock Trial Tournament is open to all 9th - 12th graders in public and nonpublic schools
who are currently registered as students at that school.
b. If a school chooses to limit student participation for any reason, this should be accomplished
through an equitable “try-out” system, not through disallowing participation by one or more
entire grade levels.
c. Each school participating in the Mock Trial Tournament may enter only ONE team.
d. Members of a school team entered in the Mock Trial Tournament—including teacher-coaches,
back-up witnesses, attorneys, and others directly associated with the team’s preparation—are
NOT permitted to attend the trial enactments of any possible future opponent in the contest.
This rule should not be construed to preclude teams from engaging in practice matches, even if
those teams may meet later during the competition.
Violations of this rule can lead to being disqualified from the tournament.
e. Immediately prior to each trial enactment, the attorneys and witnesses for each team must be
physically identified to the opposing team and the judge by stating their first and last names.
Please do not state the name of your school in front of the judge since the judge will not
otherwise be told the name of the schools participating in the enactment he or she is judging.
2. OBJECTIONS
a. Attorneys should stand when making an objection, if they are physically able to do so.
b. When making an objection, attorneys should say “objection” and then, very briefly, state the
basis for the objection (for example, “leading question”). Do not explain the basis unless the
judge asks for an explanation.
c. Witnesses should stop talking immediately when an opposing party makes an objection.
Please do not try to “talk over” the attorney making an objection.
3. DRESS
We emphasize to the judges that a student’s appearance is not a relevant factor in judging his
or her performance. However, we strongly encourage students to dress neatly and
appropriately. A “business suit” is not required.

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4. STIPULATIONS
Any stipulations are binding on all participants and the judge, and may NOT be disputed at the
trial.
5. OUTSIDE MATERIALS
Students may read other materials such as legislative histories, judicial opinions, textbooks,
treatises, etc., in preparation for the Mock Trial Tournament. However, students may cite only
the materials and cases provided in these Mock Trial Tournament materials.
6. EXHIBITS
Students may introduce into evidence or use only the exhibits and documents provided in the
Mock Trial Tournament materials. Students may not create their own charts, graphs or any
other visual aids for use in the courtroom in presenting their case.
7. SIGNALS AND COMMUNICATION
The team coaches, advisors, and spectators may not signal the team members (neither student-
attorneys nor witnesses) or communicate with them in any way during the trial, including but
not limited to wireless devices and text messaging. A witness may talk to his/her student
attorney during a recess or during direct examination but not during cross examination.
8. VIDEOTAPING/AUDIOTAPING
a. During any tournament round, except State semi-finals and State finals, a trial may be
videotaped or audio taped but only if each of the following conditions is satisfied:
1. The courthouse in which the tournament round is taking place must permit video or
audio taping and the team wishing to videotape or audiotape has received permission
from the courthouse in advance of the trial. We note that many state and Federal
courthouses prohibit video or audio taping devices in the courthouse.
2. The judge consents before the beginning of the trial.
3. The opposing team consents in writing prior to the time the trial begins. Written
consents should be delivered to the County Coordinator. Fax or e-mail is acceptable.
4. A copy of the video or audio tape must be furnished to the opposing team (at no cost)
within 48 hours after the trial.
5. The video or audio tape may not be shared by either team with any other team in the
competition.
b. Video or audio taping of the State semi-finals and final rounds is NOT permitted.

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9. MOCK TRIAL COORDINATORS
The success of the New York State Mock Trial Program depends on the many volunteer county
and regional coordinators. The appropriate supervisor will be contacted if any representative
from a high school, parent, coach, or team member addresses a mock trial volunteer or staff
person at any level of the competition in an unprofessional or discourteous manner. County
Coordinators may also refer any such matters to the Law, Youth and Citizenship Committee of
the New York State Bar Association for appropriate action by the LYC Committee.
10. ROLE AND RESPONSIBILITY OF ATTORNEYS
a. The attorney who makes the opening statement may not make the closing statement.
b. Requests for bench conferences (i.e., conferences involving the Judge, attorney(s) for the
plaintiff or the people and attorney(s) for the defendant) may be granted after the opening of
court in a mock trial, but not before.
c. Attorneys may use notes in presenting their cases, for opening statements, direct examination
of witnesses, etc. Witnesses are NOT permitted to use notes while testifying during the trial.
d. Each of the three attorneys on a team must conduct the direct examination of one witness and
the cross examination of another witness.
e. The attorney examining a particular witness must make the objections to that witness’s cross
examination, and the attorney who will cross-examine a witness must make the objections to
the witness’s direct examination.
11. WITNESSES
a. Each witness is bound by the facts of his/her affidavit or witness statement and any exhibit
authored or produced by the witness that is relevant to his/her testimony. Witnesses may not
invent any other testimony. However, in the event a witness is asked a question on cross
examination, the answer to which is not contained in the witness’s statement or was not
testified to on direct examination, the witness may respond with any answer that does not
materially alter the outcome of the trial.
b. If there is an inconsistency between the witness statement or affidavit and the statement of
facts or stipulated facts, the witness can only rely on and is bound by the information contained
in his/her affidavit or witness statement.
c. A witness is not bound by facts in other witnesses’ affidavits or statements.
d. If a witness contradicts a fact in his or her own witness statement, the opposition may impeach
the testimony of that witness.

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e. A witness’s physical appearance in the case is as he or she appears in the trial enactment. No
costumes or props may be used.

f. Witnesses shall not sit at the attorneys’ table.

12. PROTESTS
a. Other than as set forth in 12(b) below, protests of judicial rulings are NOT allowed. All
judicial rulings are final and cannot be appealed.
b. Protests are highly disfavored and will only be allowed to address two issues:
(1) cheating (a dishonest act by a team that has not been the subject of a prior judicial ruling)
and (2) a conflict of interest or gross misconduct by a judge (e.g., where a judge is related to a
team member). All protests must be made in writing and either faxed or emailed to the
appropriate County Coordinator and to the teacher-coach of the opposing team. The County
Coordinator will investigate the grounds for the protest and has the discretion to make a ruling
on the protest or refer the matter directly to the LYC Committee. The County Coordinator’s
decision can be appealed to the LYC Committee.
c. Hostile or discourteous protests will not be considered.
13. JUDGING
The decisions of the judge are final.
14. TIME LIMITS
a. The following time limits apply:
Opening statements 5 minutes for each team
Direct examination 7 minutes for each witness
Cross examination 5 minutes for each witness
Closing arguments 5 minutes for each team
b. The judges have been instructed to adhere as closely as possible to the above time limits and
that an abuse of the time limits should be reflected in scoring.

15. TEAM ATTENDANCE AT STATE FINALS ROUND
Six teams will advance to the State Finals. All six teams are required to participate in all
events associated with the Mock Trial Tournament, including attending the final round of the
competition.

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